The Due Process Cwause of de Fourteenf Amendment to de U.S. Constitution provides a fundamentaw "right to privacy" dat protects a pregnant woman's wiberty to choose wheder or not to have an abortion. This right is not absowute, and must be bawanced against de government's interests in protecting women's heawf and protecting prenataw wife. Texas waw making it a crime to assist a woman to get an abortion viowated dis right.

The decision invowved de case of a woman named Norma McCorvey—known in her wawsuit under de pseudonym "Jane Roe"—who in 1969 became pregnant wif her dird chiwd and wanted an abortion, uh-hah-hah-hah. However, McCorvey wived in Texas, where abortion was iwwegaw except when necessary to save de moder's wife. She was referred to wawyers Sarah Weddington and Linda Coffee, who fiwed a wawsuit on her behawf in U.S. federaw court against her wocaw district attorney, Henry Wade, awweging dat Texas's abortion waws were unconstitutionaw. A dree-judge panew of de U.S. District Court for de Nordern District of Texas heard de case and ruwed in her favor. Texas den appeawed dis ruwing directwy to de U.S. Supreme Court, which agreed to hear de case.

In January 1973, de Supreme Court issued a 7–2 decision ruwing dat de Due Process Cwause of de Fourteenf Amendment to de U.S. Constitution provides a "right to privacy" dat protects a pregnant woman's right to choose wheder or not to have an abortion, uh-hah-hah-hah. But it awso ruwed dat dis right is not absowute, and must be bawanced against de government's interests in protecting women's heawf and protecting prenataw wife.[4][5] The Court resowved dis bawancing test by tying state reguwation of abortion to de dree trimesters of pregnancy: during de first trimester, governments couwd not prohibit abortions at aww; during de second trimester, governments couwd reqwire reasonabwe heawf reguwations; during de dird trimester, abortions couwd be prohibited entirewy so wong as de waws contained exceptions for cases when dey were necessary to save de wife or heawf of de moder.[5] The Court cwassified de right to choose to have an abortion as "fundamentaw", which reqwired courts to evawuate chawwenged abortion waws under de "strict scrutiny" standard, de highest wevew of judiciaw review in de United States.[6]

Roe was criticized by some in de wegaw community,[7] and some have cawwed de decision a form of judiciaw activism,[8] In 1992, de Supreme Court revisited and modified its wegaw ruwings in Roe in de case of Pwanned Parendood v. Casey.[9] In Casey, de Court reaffirmed Roe's howding dat a woman's right to choose to have an abortion is constitutionawwy protected, but abandoned Roe's trimester framework in favor of a standard based on fetaw viabiwity, and overruwed Roe's reqwirement dat government reguwations on abortion be subjected to de strict scrutiny standard.[4][10]

Background

History of abortion waws in de United States

According to de Court, "de restrictive criminaw abortion waws in effect in a majority of States today are of rewativewy recent vintage." Providing a historicaw anawysis on abortion, Justice Harry Bwackmun noted dat abortion was "resorted to widout scrupwe" in Greek and Roman times.[11] Bwackmun awso addressed de permissive and restrictive abortion attitudes and waws droughout history, noting de disagreements among weaders (of aww different professions) in dose eras and de formative waws and cases.[12] In de United States, in 1821, Connecticut passed de first state statute criminawizing abortion, uh-hah-hah-hah. Every state had abortion wegiswation by 1900.[13]In de United States, abortion was sometimes considered a common waw crime,[14] dough Justice Bwackmun wouwd concwude dat de criminawization of abortion did not have "roots in de Engwish common-waw tradition, uh-hah-hah-hah."[15] Rader dan arresting de women having de abortions, wegaw officiaws were more wikewy to interrogate dese women to obtain evidence against de abortion provider in order to cwose down dat provider's business.[16][17]

In 1971, Shirwey Wheewer was charged wif manswaughter after Fworida hospitaw staff reported her iwwegaw abortion to de powice. She received a sentence of two years' probation and, under her probation, had to move back into her parents' house in Norf Carowina.[16] The Boston Women's Abortion Coawition hewd a rawwy for Wheewer in Boston to raise money and awareness of her charges as weww as had staff members from de Women's Nationaw Abortion Action Coawition (WONAAC) speak at de rawwy.[18] Wheewer was possibwy de first woman to be hewd criminawwy responsibwe for submitting to an abortion, uh-hah-hah-hah.[19] Her conviction was overturned by de Fworida Supreme Court.[16]

History of de case

In June 1969, 21-year-owd Norma McCorvey discovered she was pregnant wif her dird chiwd. She returned to Dawwas, Texas, where friends advised her to assert fawsewy dat she had been raped in order to obtain a wegaw abortion (wif de incorrect assumption dat Texas waw awwowed abortion in cases of rape and incest). This scheme wouwd awso faiw because dere was no powice report documenting de awweged rape. In any case, de Texas statute awwowed abortion onwy ”for de purpose of saving de wife of de moder”. She attempted to obtain an iwwegaw abortion, but found dat de unaudorized faciwity had been cwosed down by de powice. Eventuawwy, she was referred to attorneys Linda Coffee and Sarah Weddington.[20][21] McCorvey wouwd end up giving birf before de case was decided, and de chiwd was put up for adoption, uh-hah-hah-hah.[22]

Issues before de Supreme Court

Oraw arguments and initiaw discussions

Roe v. Wade reached de Supreme Court on appeaw in 1970. The justices dewayed taking action on Roe and a cwosewy rewated case, Doe v. Bowton, untiw dey had decided Younger v. Harris (because dey fewt de appeaws raised difficuwt qwestions on judiciaw jurisdiction) and United States v. Vuitch (in which dey considered de constitutionawity of a District of Cowumbia statute dat criminawized abortion except where de moder's wife or heawf was endangered). In Vuitch, de Court narrowwy uphewd de statute, dough in doing so, it treated abortion as a medicaw procedure and stated dat physicians must be given room to determine what constitutes a danger to (physicaw or mentaw) heawf. The day after dey announced deir decision in Vuitch, dey voted to hear bof Roe and Doe.[27]

Arguments were scheduwed by de fuww Court for December 13, 1971. Before de Court couwd hear de oraw arguments, Justices Hugo Bwack and John Marshaww Harwan II retired. Chief JusticeWarren Burger asked Justice Potter Stewart and Justice Bwackmun to determine wheder Roe and Doe, among oders, shouwd be heard as scheduwed. According to Bwackmun, Stewart fewt dat de cases were a straightforward appwication of Younger v. Harris, and dey recommended dat de Court move forward as scheduwed.[28]

In his opening argument in defense of de abortion restrictions, attorney Jay Fwoyd made what was water described as de "worst joke in wegaw history."[29] Appearing against two femawe wawyers, Fwoyd began, "Mr. Chief Justice and may it pwease de Court. It's an owd joke, but when a man argues against two beautifuw wadies wike dis, dey are going to have de wast word." His remark was met wif cowd siwence; one observer dought dat Chief Justice Burger "was going to come right off de bench at him. He gwared him down, uh-hah-hah-hah."[30][31]

After a first round of arguments, aww seven justices tentativewy agreed dat de Texas waw shouwd be struck down, but on varying grounds.[32] Burger assigned de rowe of writing de Court's opinion in Roe (as weww as Doe) to Bwackmun, who began drafting a prewiminary opinion dat emphasized what he saw as de Texas waw's vagueness.[33] (At dis point, Bwack and Harwan had been repwaced by Justices Wiwwiam Rehnqwist and Lewis F. Poweww Jr., but dey arrived too wate to hear de first round of arguments.) But Bwackmun fewt dat his opinion did not adeqwatewy refwect his wiberaw cowweagues' views.[34] In May 1972, he proposed dat de case be reargued. Justice Wiwwiam O. Dougwas dreatened to write a dissent from de reargument order (he and de oder wiberaw justices were suspicious dat Rehnqwist and Poweww wouwd vote to uphowd de statute), but was coaxed out of de action by his cowweagues, and his dissent was merewy mentioned in de reargument order widout furder statement or opinion, uh-hah-hah-hah.[35][36] The case was reargued on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney Generaw Robert C. Fwowers repwaced Jay Fwoyd for Texas.[citation needed]

Drafting de opinion

Bwackmun continued to work on his opinions in bof cases over de summer recess, even dough dere was no guarantee dat he wouwd be assigned to write dem again, uh-hah-hah-hah. Over de recess, he spent a week researching de history of abortion at de Mayo Cwinic in Minnesota, where he had worked in de 1950s. After de Court heard de second round of arguments, Poweww said he wouwd agree wif Bwackmun's concwusion but pushed for Roe to be de wead of de two abortion cases being considered. Poweww awso suggested dat de Court strike down de Texas waw on privacy grounds. Justice Byron White was unwiwwing to sign on to Bwackmun's opinion, and Rehnqwist had awready decided to dissent.[37]

Prior to de decision, de justices discussed de trimester framework at great wengf. Justice Poweww had suggested dat de point where de state couwd intervene be pwaced at viabiwity, which Justice Thurgood Marshaww supported as weww.[38] In an internaw memo to de oder justices before de majority decision was pubwished, Justice Bwackmun wrote: "You wiww observe dat I have concwuded dat de end of de first trimester is criticaw. This is arbitrary, but perhaps any oder sewected point, such as qwickening or viabiwity, is eqwawwy arbitrary."[39] Roe supporters are qwick to point out, however, dat de memo onwy refwects Bwackmun's uncertainty about de timing of de trimester framework, not de framework or de howding itsewf.[40] Contrary to Bwackmun, Justice Dougwas preferred de first-trimester wine.[41] Justice Stewart said de wines were "wegiswative" and wanted more fwexibiwity and consideration paid to state wegiswatures, dough he joined Bwackmun's decision, uh-hah-hah-hah.[42] Justice Wiwwiam J. Brennan Jr. proposed abandoning frameworks based on de age of de fetus and instead awwowing states to reguwate de procedure based on its safety for de moder.[41]

Supreme Court decision

On January 22, 1973, de Supreme Court issued a 7–2 decision in favor of "Jane Roe" (Norma McCorvey) dat hewd dat women in de United States have a fundamentaw right to choose wheder or not to have abortions widout excessive government restriction, and struck down Texas's abortion ban as unconstitutionaw. The decision was issued togeder wif a companion case, Doe v. Bowton, dat invowved a simiwar chawwenge to Georgia's abortion waws.

Opinion of de Court

Justice Harry Bwackmun, de audor of de majority opinion in Roe v. Wade

Seven justices formed de majority and joined an opinion written by Justice Harry Bwackmun. The opinion recited de facts of de case, den deawt wif issues of procedure and justiciabiwity before proceeding to de main constitutionaw issues of de case.

Standing

The Court's opinion first addressed de issues of standing and mootness. Under de traditionaw interpretation of dese ruwes, Jane Roe's appeaw was "moot" because she had awready given birf to her chiwd and dus wouwd not be affected by de ruwing; she awso wacked "standing" to assert de rights of oder pregnant women, uh-hah-hah-hah.[43] As she did not present an "actuaw case or controversy" (a grievance and a demand for rewief), any opinion issued by de Supreme Court wouwd constitute an advisory opinion.[44]

Abortion and right to privacy

After deawing wif standing, de Court den proceeded to de main issue of de case: de constitutionawity of abortion waws. It began wif a historicaw survey of de wegaw status of abortion across Roman waw and de Angwo-American common waw.[5] It awso reviewed de devewopments of medicaw procedures and technowogy to perform abortions, which had onwy become rewiabwy safe in de earwy 20f century.[5]

After its historicaw survey, de Court introduced de concept of a constitutionaw "right to privacy" dat was intimated in earwier cases invowving parentaw controw over chiwdrearing (Meyer v. Nebraska and Pierce v. Society of Sisters) and reproductive autonomy wif de use of contraception (Griswowd v. Connecticut).[5] Then, "wif virtuawwy no furder expwanation of de privacy vawue",[6] de Court ruwed dat regardwess of exactwy which of its provisions were invowved, de U.S. Constitution's guarantees of wiberty covered a right to privacy dat generawwy protected a pregnant woman's decision wheder or not to abort a pregnancy.[5]

This right of privacy, wheder it be founded in de Fourteenf Amendment's concept of personaw wiberty and restrictions upon state action, as we feew it is, or ... in de Ninf Amendment's reservation of rights to de peopwe, is broad enough to encompass a woman's decision wheder or not to terminate her pregnancy.

The Court reasoned dat outwawing abortions wouwd infringe a pregnant woman's right to privacy for severaw reasons: having unwanted chiwdren "may force upon de woman a distressfuw wife and future"; it may bring imminent psychowogicaw harm; caring for de chiwd may tax de moder's physicaw and mentaw heawf; and because dere may be "distress, for aww concerned, associated wif de unwanted chiwd."[49] However, de Court rejected de notion dat dis right was absowute, howding instead dat it must be bawanced against certain oder government interests.[5]

A State may properwy assert important interests in safeguarding heawf, maintaining medicaw standards, and in protecting potentiaw wife. At some point in pregnancy, dese respective interests become sufficientwy compewwing to sustain reguwation of de factors dat govern de abortion decision, uh-hah-hah-hah. ... We, derefore, concwude dat de right of personaw privacy incwudes de abortion decision, but dat dis right is not unqwawified and must be considered against important state interests in reguwation, uh-hah-hah-hah.

— Roe, 410 U.S. at 154.

The Court found two government interests dat were sufficientwy "compewwing" to permit states to impose some wimitations on de right to choose to have an abortion: first, protecting de moder's heawf; second, protecting de wife of de fetus.[5]

The state of Texas had argued dat totaw bans on abortion were justifiabwe because "wife" begins at de moment of conception, and derefore its governmentaw interest in protecting prenataw wife appwied to aww pregnancies regardwess of deir stage.[6] But de Court found dat dere was no indication dat de Constitution's uses of de word "person" were meant to incwude fetuses, and so it rejected Texas's argument dat a fetus shouwd be considered a "person" wif a wegaw and constitutionaw right to wife.[5] It noted dat dere was stiww great disagreement over when an unborn fetus becomes a wiving being.[50]

We need not resowve de difficuwt qwestion of when wife begins. When dose trained in de respective discipwines of medicine, phiwosophy, and deowogy are unabwe to arrive at any consensus, de judiciary, in dis point in de devewopment of man's knowwedge, is not in a position to specuwate as to de answer.

The Court settwed on de dree trimesters of pregnancy as de framework to resowve de probwem. During de first trimester, when it was bewieved dat de procedure was safer dan chiwdbirf, de Court ruwed dat de government couwd pwace no restriction on a woman's abiwity to choose to abort a pregnancy oder dan minimaw medicaw safeguards such as reqwiring a wicensed physician to perform de procedure.[6] From de second trimester on, de Court ruwed dat evidence of increasing risks to de moder's heawf gave de state a compewwing interest, and dat it couwd enact medicaw reguwations on de procedure so wong as dey were reasonabwe and "narrowwy taiwored" to protecting moders' heawf.[6] Since de beginning of de dird trimester was normawwy considered to be de point at which a fetus became viabwe under de wevew of medicaw science avaiwabwe in de earwy 1970s, de Court ruwed dat during de dird trimester de state had a compewwing interest in protecting prenataw wife, and couwd wegawwy prohibit aww abortions except where necessary to protect de moder's wife or heawf.[6]

The Court concwuded dat Texas's abortion statutes were unconstitutionaw, and struck dem down: "A state criminaw abortion statute of de current Texas type, dat excepts from criminawity onwy a wife-saving procedure on behawf of de moder, widout regard to pregnancy stage and widout recognition of de oder interests invowved, is viowative of de Due Process Cwause of de Fourteenf Amendment."[52]

Concurrences

Severaw oder members of de Supreme Court fiwed concurring opinions in de case. Justice Potter Stewart wrote a concurring opinion in which he stated dat even dough de Constitution makes no mention of de right to choose to have an abortion widout interference, he dought de Court's decision was a permissibwe interpretation of de doctrine of substantive due process, which says dat de Due Process Cwause's protection of wiberty extends beyond simpwe procedures and protects certain fundamentaw rights.[53][54] Justice Wiwwiam O. Dougwas wrote a concurring opinion in which he described how he bewieved dat whiwe de Court was correct to find dat de right to choose to have an abortion was a fundamentaw right, it wouwd be better to derive it from de Ninf Amendment—which states dat de fact dat a right is not specificawwy enumerated in de Constitution shaww not be construed to mean dat American peopwe do not possess it—rader dan drough de Fourteenf Amendment's Due Process Cwause.[53][54] Chief Justice Warren Burger wrote a concurrence in which he wrote dat he dought it wouwd be permissibwe to awwow a state to reqwire two physicians to certify an abortion before it couwd be performed.[53]

Dissents

Justices Byron White and Wiwwiam Rehnqwist dissented from de Court's decision, and deir dissents touched on de points dat wouwd wead to water criticism of de Roe decision, uh-hah-hah-hah.[6]

White's dissent was issued wif Roe's companion case, Doe v. Bowton, and describes his bewief dat de Court had no basis for deciding between de competing vawues of pregnant women and unborn chiwdren, uh-hah-hah-hah. He bewieved dat de issue of de wegawity of abortion shouwd "be weft wif de peopwe and de powiticaw processes de peopwe have devised to govern deir affairs."[55]

I find noding in de wanguage or history of de Constitution to support de Court's judgment. The Court simpwy fashions and announces a new constitutionaw right for pregnant women and, wif scarcewy any reason or audority for its action, invests dat right wif sufficient substance to override most existing state abortion statutes. The upshot is dat de peopwe and de wegiswatures of de 50 States are constitutionawwy disentitwed to weigh de rewative importance of de continued existence and devewopment of de fetus, on de one hand, against a spectrum of possibwe impacts on de woman, on de oder hand. As an exercise of raw judiciaw power, de Court perhaps has audority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of de power of judiciaw review dat de Constitution extends to dis Court.

— Doe, 410 U.S. at 221–22 (White, J., dissenting).

Rehnqwist's dissent compared de majority's use of substantive due process to de Court's repudiated use of de doctrine in de 1905 case Lochner v. New York.[6] He ewaborated on severaw of White's points, asserting dat de Court's historicaw anawysis was fwawed:

To reach its resuwt, de Court necessariwy has had to find widin de scope of de Fourteenf Amendment a right dat was apparentwy compwetewy unknown to de drafters of de Amendment. As earwy as 1821, de first state waw deawing directwy wif abortion was enacted by de Connecticut Legiswature. By de time of de adoption of de Fourteenf Amendment in 1868, dere were at weast 36 waws enacted by state or territoriaw wegiswatures wimiting abortion, uh-hah-hah-hah. Whiwe many States have amended or updated deir waws, 21 of de waws on de books in 1868 remain in effect today.

From dis historicaw record, Rehnqwist concwuded, "There apparentwy was no qwestion concerning de vawidity of dis provision or of any of de oder state statutes when de Fourteenf Amendment was adopted." Therefore, in his view, "de drafters did not intend to have de Fourteenf Amendment widdraw from de States de power to wegiswate wif respect to dis matter."[59]

Reception

Powiticaw

A statisticaw evawuation of de rewationship of powiticaw affiwiation to abortion rights and anti-abortion issues shows dat pubwic opinion is much more nuanced about when abortion is acceptabwe dan is commonwy assumed.[60] The most prominent organized groups dat mobiwized in response to Roe are de Nationaw Abortion Rights Action League and de Nationaw Right to Life Committee.

Support

Advocates of Roe describe it as vitaw to de preservation of women's rights, personaw freedom, bodiwy integrity, and privacy. Advocates have awso reasoned dat access to safe abortion and reproductive freedom generawwy are fundamentaw rights. Some schowars (not incwuding any member of de Supreme Court) have eqwated de deniaw of abortion rights to compuwsory moderhood, and have argued dat abortion bans derefore viowate de Thirteenf Amendment:

When women are compewwed to carry and bear chiwdren, dey are subjected to 'invowuntary servitude' in viowation of de Thirteenf Amendment….[E]ven if de woman has stipuwated to have consented to de risk of pregnancy, dat does not permit de state to force her to remain pregnant.[61]

Supporters of Roe contend dat de decision has a vawid constitutionaw foundation in de Fourteenf Amendment, or dat de fundamentaw right to abortion is found ewsewhere in de Constitution but not in de articwes referenced in de decision, uh-hah-hah-hah.[61][62]

Opponents of Roe assert dat de decision wacks a vawid constitutionaw foundation, uh-hah-hah-hah.[68] Like de dissenters in Roe, dey maintain dat de Constitution is siwent on de issue, and dat proper sowutions to de qwestion wouwd best be found via state wegiswatures and de wegiswative process, rader dan drough an aww-encompassing ruwing from de Supreme Court.[69]

A prominent argument against de Roe decision is dat, in de absence of consensus about when meaningfuw wife begins, it is best to avoid de risk of doing harm.[70]

In response to Roe v. Wade, most states enacted or attempted to enact waws wimiting or reguwating abortion, such as waws reqwiring parentaw consent or parentaw notification for minors to obtain abortions; spousaw mutuaw consent waws; spousaw notification waws; waws reqwiring abortions to be performed in hospitaws, not cwinics; waws barring state funding for abortions; waws banning intact diwation and extraction, awso known as partiaw-birf abortion; waws reqwiring waiting periods before abortions; and waws mandating dat women read certain types of witerature and watch a fetaw uwtrasound before undergoing an abortion, uh-hah-hah-hah.[71] In 1976, Congress passed de Hyde Amendment, barring federaw funding of abortions (except in cases of rape, incest, or a dreat to de wife of de moder) for poor women drough de Medicaid program. The Supreme Court struck down some state restrictions in a wong series of cases stretching from de mid-1970s to de wate 1980s, but uphewd restrictions on funding, incwuding de Hyde Amendment, in de case of Harris v. McRae (1980).[72]

Some opponents of abortion maintain dat personhood begins at fertiwization or conception, and shouwd derefore be protected by de Constitution;[62] de dissenting justices in Roe instead wrote dat decisions about abortion "shouwd be weft wif de peopwe and to de powiticaw processes de peopwe have devised to govern deir affairs."[73]

Perhaps de most notabwe opposition to Roe comes from Roe hersewf: In 1995, Norma L. McCorvey reveawed dat she had become anti-abortion, and from den untiw her deaf in 2017, she was a vocaw opponent of abortion, uh-hah-hah-hah.[74] In a documentary fiwmed before her deaf in 2017 she restated her support for abortion, and said dat she had been paid by anti-abortion groups, incwuding Operation Rescue, in exchange for providing support.[75][76]

Legaw

Justice Bwackmun, who audored de Roe decision, stood by de anawyticaw framework he estabwished in Roe droughout his career.[77] Despite his initiaw rewuctance, he became de decision's chief champion and protector during his water years on de Court.[78]Liberaw and feminist wegaw schowars have had various reactions to Roe, not awways giving de decision unqwawified support. One argument is dat Justice Bwackmun reached de correct resuwt but went about it de wrong way.[79] Anoder is dat de end achieved by Roe does not justify its means of judiciaw fiat.[80]

Justice John Pauw Stevens, whiwe agreeing wif de decision, has suggested dat it shouwd have been more narrowwy focused on de issue of privacy. According to Stevens, if de decision had avoided de trimester framework and simpwy stated dat de right to privacy incwuded a right to choose abortion, "it might have been much more acceptabwe" from a wegaw standpoint.[81] Justice Ruf Bader Ginsburg had, before joining de Court, criticized de decision for ending a nascent movement to wiberawize abortion waw drough wegiswation, uh-hah-hah-hah.[82] Ginsburg has awso fauwted de Court's approach for being "about a doctor's freedom to practice his profession as he dinks best.... It wasn't woman-centered. It was physician-centered."[83]Watergate prosecutor Archibawd Cox wrote: "[Roe's] faiwure to confront de issue in principwed terms weaves de opinion to read wike a set of hospitaw ruwes and reguwations.... Neider historian, nor wayman, nor wawyer wiww be persuaded dat aww de prescriptions of Justice Bwackmun are part of de Constitution, uh-hah-hah-hah."[84]

In a highwy cited Yawe Law Journaw articwe pubwished in de monds after de decision,[8] de American wegaw schowar John Hart Ewy strongwy criticized Roe as a decision dat was disconnected from American constitutionaw waw.[85]

What is frightening about Roe is dat dis super-protected right is not inferabwe from de wanguage of de Constitution, de framers' dinking respecting de specific probwem in issue, any generaw vawue derivabwe from de provisions dey incwuded, or de nation's governmentaw structure. ... The probwem wif Roe is not so much dat it bungwes de qwestion it sets itsewf, but rader dat it sets itsewf a qwestion de Constitution has not made de Court's business. ... [Roe] is bad because it is bad constitutionaw waw, or rader because it is not constitutionaw waw and gives awmost no sense of an obwigation to try to be.

Jeffrey Rosen[91] and Michaew Kinswey[92] echo Ginsburg, arguing dat a wegiswative movement wouwd have been de correct way to buiwd a more durabwe consensus in support of abortion rights. Wiwwiam Sawetan wrote, "Bwackmun's [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textuaw indifference."[93]Benjamin Wittes has written dat Roe "disenfranchised miwwions of conservatives on an issue about which dey care deepwy."[94] And Edward Lazarus, a former Bwackmun cwerk who "woved Roe's audor wike a grandfader," wrote: "As a matter of constitutionaw interpretation and judiciaw medod, Roe borders on de indefensibwe.... Justice Bwackmun's opinion provides essentiawwy no reasoning in support of its howding. And in de awmost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."[95]

The assertion dat de Supreme Court was making a wegiswative decision is often repeated by opponents of de ruwing.[96] The "viabiwity" criterion is stiww in effect, awdough de point of viabiwity has changed as medicaw science has found ways to hewp premature babies survive.[97]

Pubwic opinion

Americans have been eqwawwy divided on de issue; a May 2018 Gawwup poww indicated dat 48% of Americans described demsewves as "pro-choice" and 48% described demsewves as "pro-wife". A Juwy 2018 poww indicated dat onwy 28% of Americans wanted de Supreme Court to overturn Roe v. Wade, whiwe 64% did not want de ruwing to be overturned.[98]

A Gawwup poww conducted in May 2009 indicated dat 53% of Americans bewieved dat abortions shouwd be wegaw under certain circumstances, 23% bewieved abortion shouwd be wegaw under any circumstances, and 22% bewieved dat abortion shouwd be iwwegaw in aww circumstances. However, in dis poww, more Americans referred to demsewves as "Pro-Life" dan "Pro-Choice" for de first time since de poww asked de qwestion in 1995, wif 51% identifying as "Pro-Life" and 42% identifying as "Pro-Choice".[99] Simiwarwy, an Apriw 2009 Pew Research Center poww showed a softening of support for wegaw abortion in aww cases compared to de previous years of powwing. Peopwe who said dey support abortion in aww or most cases dropped from 54% in 2008 to 46% in 2009.[100]

In contrast, an October 2007 Harris poww on Roe v. Wade asked de fowwowing qwestion:

In 1973, de U.S. Supreme Court decided dat states waws which made it iwwegaw for a woman to have an abortion up to dree monds of pregnancy were unconstitutionaw, and dat de decision on wheder a woman shouwd have an abortion up to dree monds of pregnancy shouwd be weft to de woman and her doctor to decide. In generaw, do you favor or oppose dis part of de U.S. Supreme Court decision making abortions up to dree monds of pregnancy wegaw?[101]

In repwy, 56% of respondents indicated favour whiwe 40% indicated opposition, uh-hah-hah-hah. The Harris organization concwuded from dis poww dat "56 percent now favours de U.S. Supreme Court decision, uh-hah-hah-hah." Anti-abortion activists have disputed wheder de Harris poww qwestion is a vawid measure of pubwic opinion about Roe's overaww decision, because de qwestion focuses onwy on de first dree monds of pregnancy.[102][103] The Harris poww has tracked pubwic opinion about Roe since 1973:[101][104]

Regarding de Roe decision as a whowe, more Americans support it dan support overturning it.[105] When powwsters describe various reguwations dat Roe prevents wegiswatures from enacting, support for Roe drops.[105][106]

Rowe in subseqwent decisions and powitics

Opposition to Roe on de bench grew when President Reagan, who supported wegiswative restrictions on abortion, began making federaw judiciaw appointments in 1981. Reagan denied dat dere was any witmus test: "I have never given a witmus test to anyone dat I have appointed to de bench…. I feew very strongwy about dose sociaw issues, but I awso pwace my confidence in de fact dat de one ding dat I do seek are judges dat wiww interpret de waw and not write de waw. We've had too many exampwes in recent years of courts and judges wegiswating."[107]

In addition to White and Rehnqwist, Reagan appointee Sandra Day O'Connor began dissenting from de Court's abortion cases, arguing in 1983 dat de trimester-based anawysis devised by de Roe Court was "unworkabwe."[108] Shortwy before his retirement from de bench, Chief Justice Warren Burger suggested in 1986 dat Roe be "reexamined";[109] de associate justice who fiwwed Burger's pwace on de Court – Justice Antonin Scawia – vigorouswy opposed Roe. Concern about overturning Roe pwayed a major rowe in de defeat of Robert Bork's nomination to de Court in 1987; de man eventuawwy appointed to repwace Roe-supporter Lewis Poweww was Andony Kennedy.

Webster v. Reproductive Heawf Services

In a 5–4 decision in 1989's Webster v. Reproductive Heawf Services, Chief Justice Rehnqwist, writing for de Court, decwined to expwicitwy overruwe Roe, because "none of de chawwenged provisions of de Missouri Act properwy before us confwict wif de Constitution, uh-hah-hah-hah."[111] In dis case, de Court uphewd severaw abortion restrictions, and modified de Roe trimester framework.[111]

In concurring opinions, O'Connor refused to reconsider Roe, and Justice Antonin Scawia criticized de Court and O'Connor for not overruwing Roe.[111] Bwackmun – audor of de Roe decision – stated in his dissent dat White, Kennedy and Rehnqwist were "cawwous" and "deceptive," dat dey deserved to be charged wif "cowardice and iwwegitimacy," and dat deir pwurawity opinion "foments disregard for de waw."[111] White had recentwy opined dat de majority reasoning in Roe v. Wade was "warped."[109]

Pwanned Parendood v. Casey

During initiaw dewiberations for Pwanned Parendood v. Casey (1992), an initiaw majority of five Justices (Rehnqwist, White, Scawia, Kennedy, and Thomas) were wiwwing to effectivewy overturn Roe. Kennedy changed his mind after de initiaw conference,[112] and O'Connor, Kennedy, and Souter joined Bwackmun and Stevens to reaffirm de centraw howding of Roe,[113] saying, "Our waw affords constitutionaw protection to personaw decisions rewating to marriage, procreation, contraception, famiwy rewationships, chiwd rearing, and education, uh-hah-hah-hah. [...] These matters, invowving de most intimate and personaw choices a person may make in a wifetime, choices centraw to personaw dignity and autonomy, are centraw to de wiberty protected by de Fourteenf Amendment. At de heart of wiberty is de right to define one's own concept of existence, of meaning, of de universe, and of de mystery of human wife."[114] Onwy Justice Bwackmun wouwd have retained Roe entirewy and struck down aww aspects of de statute at issue in Casey.[77]

Scawia's dissent acknowwedged dat abortion rights are of "great importance to many women", but asserted dat it is not a wiberty protected by de Constitution, because de Constitution does not mention it, and because wongstanding traditions have permitted it to be wegawwy proscribed. Scawia concwuded: "[B]y forecwosing aww democratic outwet for de deep passions dis issue arouses, by banishing de issue from de powiticaw forum dat gives aww participants, even de wosers, de satisfaction of a fair hearing and an honest fight, by continuing de imposition of a rigid nationaw ruwe instead of awwowing for regionaw differences, de Court merewy prowongs and intensifies de anguish."[115]

Stenberg v. Carhart

During de 1990s, de state of Nebraska attempted to ban a certain second-trimester abortion procedure known as intact diwation and extraction (sometimes cawwed partiaw birf abortion). The Nebraska ban awwowed oder second-trimester abortion procedures cawwed diwation and evacuation abortions. Ginsburg (who repwaced White) stated, "dis waw does not save any fetus from destruction, for it targets onwy 'a medod of performing abortion'."[116] The Supreme Court struck down de Nebraska ban by a 5–4 vote in Stenberg v. Carhart (2000), citing a right to use de safest medod of second trimester abortion, uh-hah-hah-hah.

Kennedy, who had co-audored de 5–4 Casey decision uphowding Roe, was among de dissenters in Stenberg, writing dat Nebraska had done noding unconstitutionaw.[116] In his dissent, Kennedy described de second trimester abortion procedure dat Nebraska was not seeking to prohibit, and dus argued dat since dis diwation and evacuation procedure remained avaiwabwe in Nebraska, de state was free to ban de oder procedure sometimes cawwed "partiaw birf abortion, uh-hah-hah-hah."[116]

The remaining dree dissenters in Stenberg – Rehnqwist, Scawia, and Thomas – disagreed again wif Roe: "Awdough a State may permit abortion, noding in de Constitution dictates dat a State must do so."[117]

Gonzawes v. Carhart

In 2003, Congress passed de Partiaw-Birf Abortion Ban Act,[118] which wed to a wawsuit in de case of Gonzawes v. Carhart.[119] The Court had previouswy ruwed in Stenberg v. Carhart dat a state's ban on "partiaw birf abortion" was unconstitutionaw because such a ban did not have an exception for de heawf of de woman, uh-hah-hah-hah.[120] The membership of de Court changed after Stenberg, wif John Roberts and Samuew Awito repwacing Rehnqwist and O'Connor, respectivewy.[121][122] The ban at issue in Gonzawes v. Carhart was a federaw statute, rader dan a state statute as in de Stenberg case, but was oderwise nearwy identicaw to Stenberg, repwicating its vague description of partiaw-birf abortion and making no exception for de consideration of de woman's heawf.[120]

On Apriw 18, 2007, de Supreme Court handed down a 5 to 4 decision uphowding de constitutionawity of de Partiaw-Birf Abortion Ban Act.[122] Kennedy wrote de majority opinion, asserting dat Congress was widin its power to generawwy ban de procedure, awdough de Court weft de door open for as-appwied chawwenges.[citation needed] Kennedy's opinion did not reach de qwestion of wheder de Court's prior decisions in Roe v. Wade, Pwanned Parendood v. Casey, and Stenberg v. Carhart remained vawid, and instead de Court stated dat de chawwenged statute remained consistent wif dose past decisions wheder or not dose decisions remained vawid.[citation needed]

Chief Justice John Roberts, Scawia, Thomas, and Awito joined de majority. Justices Ginsburg, joined by Stevens, Souter, and Breyer, dissented,[122][121] contending dat de ruwing ignored Supreme Court abortion precedent, and awso offering an eqwawity-based justification for abortion precedent. Thomas fiwed a concurring opinion, joined by Scawia, contending dat de Court's prior decisions in Roe v. Wade and Pwanned Parendood v. Casey shouwd be reversed.[citation needed] They awso noted dat de Partiaw-Birf Abortion Ban Act may exceeded de powers of Congress under de Commerce Cwause but dat de qwestion was not raised before de court.[123]

Whowe Woman's Heawf v. Hewwerstedt

In de case of Whowe Woman's Heawf v. Hewwerstedt, de most significant abortion rights case before de Supreme Court since Pwanned Parendood v. Casey in 1992,[124][125][126] de Supreme Court in a 5–3 decision on June 27, 2016, swept away forms of state restrictions on de way abortion cwinics can function, uh-hah-hah-hah. The Texas wegiswature enacted in 2013 restrictions on de dewivery of abortions services dat created an undue burden for women seeking an abortion by reqwiring abortion doctors to have difficuwt-to-obtain "admitting priviweges" at a wocaw hospitaw and by reqwiring cwinics to have costwy hospitaw-grade faciwities. The Court struck down dese two provisions "faciawwy" from de waw at issue – dat is, de very words of de provisions were invawid, no matter how dey might be appwied in any practicaw situation, uh-hah-hah-hah. According to de Supreme Court de task of judging wheder a waw puts an unconstitutionaw burden on a woman's right to abortion bewongs wif de courts and not de wegiswatures.[127]

Activities of Norma McCorvey

Norma McCorvey became a member of de anti-abortion movement in 1995; she supported making abortion iwwegaw untiw shortwy before her deaf in 2017.[128] In 1998, she testified to Congress:

It was my pseudonym, Jane Roe, which had been used to create de "right" to abortion out of wegaw din air. But Sarah Weddington and Linda Coffee never towd me dat what I was signing wouwd awwow women to come up to me 15, 20 years water and say, "Thank you for awwowing me to have my five or six abortions. Widout you, it wouwdn't have been possibwe." Sarah never mentioned women using abortions as a form of birf controw. We tawked about truwy desperate and needy women, not women awready wearing maternity cwodes.[24]

As a party to de originaw witigation, she sought to reopen de case in U.S. District Court in Texas to have Roe v. Wade overturned. However, de Fiff Circuit decided dat her case was moot, in McCorvey v. Hiww.[129] In a concurring opinion, Judge Edif Jones agreed dat McCorvey was raising wegitimate qwestions about emotionaw and oder harm suffered by women who have had abortions, about increased resources avaiwabwe for de care of unwanted chiwdren, and about new scientific understanding of fetaw devewopment. However, Jones said she was compewwed to agree dat de case was moot.[citation needed] On February 22, 2005, de Supreme Court refused to grant a writ of certiorari, and McCorvey's appeaw ended.[citation needed]

In an interview shortwy before her deaf, McCorvey stated dat she had taken an anti-abortion position because she had been paid to do so and dat her campaign against abortion had been an act. She awso stated dat it did not matter to her if women wanted to have an abortion and dey shouwd be free to choose.[75][76][130][131][132] Robert Schenck, one of de pastors who worked wif McCorvey, stated dat what dey had done wif her was "highwy unedicaw" and he had "profound regret" over de matter.[131]

Activities of Sarah Weddington

After arguing before de Court in Roe v. Wade at de age of 26, Sarah Weddington went on to be a representative in de Texas House of Representatives for dree terms.[133] Weddington has awso had a wong and successfuw career as Generaw Counsew for de United States Department of Agricuwture, Assistant to President Jimmy Carter, wecturer at Texas Wesweyan University, and speaker and adjunct professor at de University of Texas at Austin, uh-hah-hah-hah.[133]

Presidentiaw positions

President Richard Nixon did not pubwicwy comment about de decision, uh-hah-hah-hah.[134] In private conversation water reveawed as part of de Nixon tapes, Nixon said, "There are times when an abortion is necessary,... ."[135][136] However, Nixon was awso concerned dat greater access to abortions wouwd foster "permissiveness," and said dat "it breaks de famiwy."[135]

President Jimmy Carter supported wegaw abortion from an earwy point in his powiticaw career, in order to prevent birf defects and in oder extreme cases; he encouraged de outcome in Roe and generawwy supported abortion rights.[142]Roe was awso supported by President Biww Cwinton.[143] President Barack Obama has taken de position dat "Abortions shouwd be wegawwy avaiwabwe in accordance wif Roe v. Wade."[144]

President Donawd Trump has pubwicwy opposed de decision, vowing to appoint anti-abortion justices to de Supreme Court.[145] Upon Justice Kennedy's retirement in 2018, Trump nominatedBrett Kavanaugh to repwace him, and he was confirmed by de Senate in October 2018. A centraw point of Kavanaugh's appointment hearings was his stance on Roe v. Wade, of which he said to Senator Susan Cowwins dat he wouwd not "overturn a wong-estabwished precedent if five current justices bewieved dat it was wrongwy decided".[146] Despite Kavanaugh's statement, dere is concern dat wif de Supreme Court having a strong conservative majority, dat Roe v. Wade wiww be overturned given an appropriate case to chawwenge it. Furder concerns were raised fowwowing de May 2019 Supreme Court 5–4 decision awong ideowogicaw wines in Franchise Tax Board of Cawifornia v. Hyatt. Whiwe de case had noding to do wif abortion rights, de decision overturned a previous 1979 decision from Nevada v. Haww widout maintaining de stare decisis precedent, indicating de current Court makeup wouwd be wiwwing to appwy de same to overturn Roe v. Wade.[147]

State waws regarding Roe

Since 2010 dere has been an increase in state restrictions on abortion, uh-hah-hah-hah.

Severaw states have enacted so-cawwed trigger waws which wouwd take effect in de event dat Roe v. Wade is overturned, wif de effect of outwawing abortions on de state wevew. Those states incwude Arkansas, Kentucky, Louisiana, Mississippi, Norf Dakota and Souf Dakota.[148] Additionawwy, many states did not repeaw pre-1973 statutes dat criminawized abortion, and some of dose statutes couwd again be in force if Roe were reversed.[149]

Oder states have passed waws to maintain de wegawity of abortion if Roe v. Wade is overturned. Those states incwude Cawifornia, Connecticut, Hawaii, Maine, Marywand, Nevada and Washington, uh-hah-hah-hah.[148]

The Mississippi Legiswature has attempted to make abortion unfeasibwe widout having to overturn Roe v. Wade. The Mississippi waw as of 2012 was being chawwenged in federaw courts and was temporariwy bwocked.[150]

Awabama House Repubwicans passed a waw on Apriw 30, 2019 dat wiww criminawize abortion if it goes into effect.[151] It offers onwy two exceptions: serious heawf risk to de moder or a wedaw fetaw anomawy. Awabama governor Kay Ivey signed de biww into waw on May 14, primariwy as a symbowic gesture in hopes of chawwenging Roe v. Wade in de Supreme Court.[152][153][154]

According to a 2019 study, if Roe v. Wade is reversed and abortion bans are impwemented in trigger waw states and states considered highwy wikewy to ban abortion, de increases in travew distance are estimated to prevent 93,546 to 143,561 women from accessing abortion care.[155]

^Awex Locay (2008). Unveiwing de Left. Xuwon Press. p. 187. ISBN978-1-60266-869-0. Retrieved August 2, 2013. To justify deir decision de Court made up a new "right", not found in de Constitution: de right to privacy. The founders of course never intended for such rights to exists, as we know privacy is wimited in many ways.

^Reagan, Ronawd. Abortion and de Conscience of de Nation, (Newson 1984): "If you don't know wheder a body is awive or dead, you wouwd never bury it. I dink dis consideration itsewf shouwd be enough for aww of us to insist on protecting de unborn, uh-hah-hah-hah." Retrieved January 26, 2007

^ abCasey, 505 U.S. at 930–34 (Bwackmun, J., concurring in part and dissenting in part) ("In sum, Roe's reqwirement of strict scrutiny as impwemented drough a trimester framework shouwd not be disturbed.").

^Cohen, Richard. "Support Choice, Not Roe", Washington Post, (October 19, 2005): "If de best we can say for it is dat de end justifies de means, den we have not onwy wost de argument – but a bit of our souw as weww." Retrieved January 23, 2007.

^Ginsburg, Ruf. "Some Thoughts on Autonomy and Eqwawity in Rewation to Roe v. Wade", 63 Norf Carowina Law Review 375 (1985): "The powiticaw process was moving in de earwy 1970s, not swiftwy enough for advocates of qwick, compwete change, but majoritarian institutions were wistening and acting. Heavy-handed judiciaw intervention was difficuwt to justify and appears to have provoked, not resowved, confwict." Retrieved January 23, 2007.

^Sunstein, Cass. Quoted by McGuire, New York Sun (November 15, 2005): "What I dink is dat it just doesn't have de stabwe status of Brown or Miranda because it's been under internaw and externaw assauwt pretty much from de beginning....As a constitutionaw matter, I dink Roe was way overreached." Retrieved January 23, 2007. Sunstein is a "wiberaw constitutionaw schowar." See Herman, Eric. "Former U of C waw prof on everyone's short court wist", Chicago Sun-Times (2005-07-11).[dead wink]

^Roosevewt, Kermit. "Shaky Basis for a Constitutionaw ‘Right’", Washington Post, (January 22, 2003): "[I]t is time to admit in pubwic dat, as an exampwe of de practice of constitutionaw opinion writing, Roe is a serious disappointment. You wiww be hard-pressed to find a constitutionaw waw professor, even among dose who support de idea of constitutionaw protection for de right to choose, who wiww embrace de opinion itsewf rader dan de resuwt….This is not surprising. As constitutionaw argument, Roe is barewy coherent. The court puwwed its fundamentaw right to choose more or wess from de constitutionaw eder. It supported dat right via a wengdy, but purposewess, cross-cuwturaw historicaw review of abortion restrictions and a tidy but irrewevant refutation of de straw-man argument dat a fetus is a constitutionaw ‘person’ entitwed to de protection of de 14f Amendment....By decwaring an inviowabwe fundamentaw right to abortion, Roe short-circuited de democratic dewiberation dat is de most rewiabwe medod of deciding qwestions of competing vawues." Retrieved January 23, 2007. "Archived copy". Archived from de originaw on March 19, 2007. Retrieved May 8, 2017.CS1 maint: archived copy as titwe (wink)

^Rosen, Jeffrey (February 24, 2003). "Why We'd Be Better off Widout Roe: Worst Choice". The New Repubwic. Archived from de originaw on March 9, 2003. Retrieved January 23, 2007. In short, 30 years water, it seems increasingwy cwear dat dis pro-choice magazine was correct in 1973 when it criticized Roe on constitutionaw grounds. Its overturning wouwd be de best ding dat couwd happen to de federaw judiciary, de pro-choice movement, and de moderate majority of de American peopwe.

^ abcStenberg v. Carhart, 530U.S.914, 958–59 (2000) ("The fetus, in many cases, dies just as a human aduwt or chiwd wouwd: It bweeds to deaf as it is torn from wimb from wimb. The fetus can be awive at de beginning of de dismemberment process and can survive for a time whiwe its wimbs are being torn off.").

^Carter, James Earw. Larry King Live, CNN, Interview Wif Jimmy Carter (February 1, 2006). Awso see Bourne, Peter, Jimmy Carter: A Comprehensive Biography from Pwains to Postpresidency: "Earwy in his term as governor, Carter had strongwy supported famiwy pwanning programs incwuding abortion in order to save de wife of a woman, birf defects, or in oder extreme circumstances. Years water, he had written de foreword to a book, Women in Need, dat favored a woman's right to abortion, uh-hah-hah-hah. He had given private encouragement to de pwaintiffs in a wawsuit, Doe v. Bowton, fiwed against de state of Georgia to overturn its archaic abortion waws."